When Is a Subpoena Request “Unduly Burdensome”?

Discovery is a unique part of litigation that can often affect the outcome of the case. The courts can issue subpoenas requesting a demand for documents, depositions, or other types of evidence. Typically, both sides in the case will spend hundreds of hours examining evidence in the discovery process. One tool in the process is the subpoena. This legal writ can be used to request a nonparty to produce evidence or face significant penalties. Can subpoenas demand complete compliance? In some cases, they can be considered “unduly burdensome” to the recipient. Find out what conditions can lead to these burdensome requests.

Subpoenas Seek Discovery from Nonparties in a Lawsuit

Under Federal Rule of Civil Procedure 45, parties in a lawsuit can serve subpoenas seeking discovery from nonparties. However, that rule stipulates that the courts need to protect any nonparties from an undue burden. According to the American Bar Association, some subpoena recipients can object to complying with the subpoena since it is considered unduly burdensome and expensive. Rule 45 explicitly states that any party issuing a subpoena must take a “reasonable” step to avoid imposing undue expenses or burdens on the recipient of the subpoena.

Since 2015, those legal protections under the law have been supplemented under Rule 26, which states that the discovery requirement must be proportional to the case. In many cases, the courts will grant relief to the nonparties, but it can take the shape of many forms. Sometimes, the judge could shift the costs to the requestor, or the courts may quash the subpoena. If the courts do not quash the entire subpoena, the nonparty will still need to comply in some form with the requests.

If a subpoena recipient wants to prove undue burden, they must be willing to offer the following to the courts:

• Show documentation of undue burden, including time and expense calculations
• Demonstrate the information is not relevant to the case
• Make a statement that they have no interest in the litigation
• Establish facts that the requested discovery is not proportional to the case’s needs
• Offer a compromise to minimize their burden

When Does a Subpoena Become Burdensome?

According to Rule 45, a subpoena commands a nonparty to “produce documents, electronically stored information, or tangible things.” There are a few limitations. The courts can quash or modify a subpoena if it does not allow the nonparty to respond in a reasonable amount of time. If the individual must travel more than 100 miles or needs to disclose sensitive or privileged information, then that request could be subjected to undue burden. Additionally, any subpoena that requires a company or individual to reveal confidential research or trade secrets could also fall under the undue burden category.

Federal rules limit the subpoena’s scope according to the relevance standards established in Rule 26(b)(1). Along with that, the considerations of burdens and other expenses are also outlined in both Rules 26 and 45. When the courts must decide whether a subpoena is unduly burdensome or not, it will balance the recipient’s burden against the request with the litigant’s need for information, the breadth of the request, and the information sought. With Rule 26 in mind, these needs must be proportional to the case. While these rules may seem like a safeguard to protect the interests of the subpoena recipients, the courts need to be more consistent in applying them in cases.

Some Subpoenas Can Still Cause Burdens

Unfortunately, stating that a subpoena will cause the recipient “undue burden” is not a straightforward way to quash the request. In many cases, the courts will tailor or narrow the request to accommodate the nonparty. Often quashing the subpoena is the final decision and not one that many judges are willing to take. The court can often shift costs, but even then, if the subpoena was served in good faith, or the individual has a financial connection to the party, they may have to bear the economic costs.

If the recipient wants to avoid any undue burden, the individual must demonstrate they have no interest or connection to the case while preparing documentation that will substantiate their expected burdens and costs. Generally, recipients of a subpoena are more likely to achieve some modification of the request rather than hoping for a total dissolution of the writ.

Discuss Your Case with an Experienced Litigator

At Delahunty & Nash LLP, our legal team has been successful at responding to and quashing subpoenas. We understand that some of these subpoenas can cause an undue burden. If you have been served a subpoena, make sure to contact our office at (415) 891-6210 for a complimentary consultation of your case.

Patrick Delahunty

Patrick Delahunty is a former federal prosecutor with deep experience in resolving disputes. He advises individuals and companies in complex criminal, regulatory, and commercial litigation.